“5.11 The term “torture”, as means of trafficking, consists of any acts, by which strong suffering or intense physical or mental pain is caused to a person. (…) Physical and mental violence caused to a person, considered in its entirety, may qualify as acts of torture in the meaning of Article 165 CC, where it caused grave pain or suffering and has been extremely rough and cruel (deprivation of sleep, food and water, thermic or chemical burns, intimidation, deprivation of medical help, of toilet facilities etc.). (…) Inhuman treatment is any treatment, other than torture, which is likely to cause deliberately terrible physical or mental suffering, which cannot be justified. (…) Degrading treatment is any treatment, other than torture, which gravely humiliates a person in front of other persons or forces him/her to act against his/her will and conscience, or which is likely to cause feelings of fear, inferiority or anxiety to the victim, to abuse and break down his/her physical and moral resistance, in order to ensure victim’s obedience.” Trafficking in human beings and gender equality in Moldova: updated normative acts in the absence of a consistent pattern of torture or other gross or mass human rights violations, the protection of refoulement of Art. 3 UNCAT applies.147 The return of trafficked persons to the country of origin can lead to harms such as retaliation or re-trafficking, which could amount to torture or to other forms of ill-treatment. As a consequence, the possibility of being exposed to retaliation or re-trafficking has to be assessed by the State in order to be able to apply the principle of non-refoulement. States are not allowed to return a person if there is the risk of harm such as re-trafficking or retaliation in the country of origin which may amount to torture or – under the ECHR – to other forms of ill-treatment. Therefore, States are obliged to implement a meaningful and effective risk assessment. The Palermo Protocol stresses that the return shall “preferably be voluntary” 148. Many trafficked persons want to return to their home country and return therefore voluntarily. In reality though, it is often not necessarily the case that the persons return voluntarily, it is rather a lack of other alternatives. A return can only be called voluntary if the trafficked person can legally stay in the country of destination and can therefore make an informed decision about the return.149 The Palermo Protocol requires that the return of a trafficked person shall be “with due regard for the safety of that person” 150, but does not require a risk assessment in general. The OSCE Action Plan to Combat Trafficking in Human Beings and Ministerial Council decisions stress that OSCE participating States have to assess the safety of returning a trafficked person and ensure that the non-refoulement principle is applied effectively.151 Limited experience of jurisprudence linking trafficking in human beings to torture or other forms of ill-treatment makes it difficult to develop the possibility of protection from refoulement for trafficked persons due to the threat of torture or other forms of ill-treatment in the country of origin. 4.1.7 The Return of Victims of Trafficking in Human Beings and Risk Assessment The United Nations Convention against Torture: In general, UNCAT obliges States not to expel, return or extradite a person if this person faces the risk of being tortured in the State in which the person shall return to. The host-State has to assess the risk of torture. States have to assess not only the possible existence of a “consistent pattern of gross, flagrant or mass violations of human rights” 146 but also the individual circumstances of a person. Even A Commentary Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment Decision No. 557/Rev. 1 OSCE Action Plan to Combat Trafficking in Human Beings United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime Report, First Expert Meeting on Human Rights Protection in the return of trafficked persons to countries of origin 33